Opinion
B292755
03-06-2020
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN MACIAS, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, William H. Shin and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA110524) APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, William H. Shin and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
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Jonathan Macias was charged with murdering his neighbor. A security camera captured some of the events, and that footage was the primary evidence against Macias. At trial, the footage played as the investigating detective narrated it. The jury found Macias guilty of second degree murder. On appeal, he contends that there is insufficient evidence to support his conviction and that the detective's narration was inadmissible and violated his right to a fair trial. He also contends that the trial court failed to inquire as to a juror's competence and that the matter should be remanded for a hearing on his ability to pay fines and assessments. We reject all contentions.
BACKGROUND
In 2015, Maria Camargo and her husband Luis Segura had lived next door to Jonathan Macias and his brother Flavio Macias for about 16 years. On August 24, 2015, Segura was outside, washing a van. At some point, he came inside and told his wife he was getting a beer for Flavio. Through a window, Camargo could see her husband talking to Flavio. Thereafter, Camargo saw Jonathan with Flavio by the van. Suddenly, the van "drop[ped]," as if something heavy like a sack of sand had been put in it. It looked to Camargo that Flavio closed the van's door, which she thought was strange. Not seeing her husband, she went outside and asked Flavio, who was walking up his driveway, where was Segura. Flavio saluted her as if to say "hi."
We refer to the Macias brothers by their first names for the sake of clarity, intending no disrespect.
Camargo found Segura in the van. Segura had been beaten about the face and head. The injuries were consistent with blows from a hammer and cement pavers. Inside Flavio's home, officers found bloody clothes and shoes that tested positive for Segura's DNA. Also, a cement paver and hammer had Segura's blood on them. Jonathan's DNA was not on any items tested.
Segura died from multiple injuries to the head.
Jonathan and Flavio were jointly tried for first degree murder. The jury found Flavio guilty of first degree murder (Pen. Code, § 187, subd. (a)) and found true a weapon-use allegation (§ 12022, subd. (b)(1)). When the jury could not reach a verdict on first degree murder as to Jonathan, the trial court struck the first degree murder allegation at the prosecutor's request. The jury then found Jonathan guilty of second degree murder.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirmed the judgment of conviction as to Flavio in People v. Macias (Sept. 23, 2019, B291144) [nonpub. opn].
On September 19, 2018, the trial court sentenced Jonathan to 15 years to life.
DISCUSSION
I. Sufficiency of the evidence
The People's theory was Jonathan aided and abetted Flavio to kill Segura. Jonathan contends there was insufficient evidence to support that theory, and therefore the judgment must be reversed. We disagree.
When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Westerfield (2019) 6 Cal.5th 632, 713.) We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. (Ibid.) The standard of review is the same in cases where the prosecution relies mainly on circumstantial evidence. (Ibid.)
" 'A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.' " (People v. Delgado (2013) 56 Cal.4th 480, 486; § 31.) Factors that may be considered when determining whether a defendant was an aider and abettor are presence at the crime scene, companionship, and conduct before and after the offense. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) However, mere presence at the scene of a crime, knowledge of the perpetrator's criminal purpose, or the failure to prevent the crime do not amount to aiding and abetting, although these factors may be considered in determining criminal responsibility. (People v. Garcia (2008) 168 Cal.App.4th 261, 272-273.) There is rarely any direct evidence of a criminal defendant's knowledge or intent; those elements are generally proved with circumstantial evidence. (People v. Hill (1998) 17 Cal.4th 800, 851-852.)
Here, the video constituted the primary evidence against Jonathan. Jonathan, however, argues that the video alone merely shows him watching his brother commit a crime. In Jonathan's view, the only thing elevating the video into evidence he aided and abetted that crime is the detective's inadmissible narration. For the purposes of addressing the sufficiency of the evidence, however, we can ignore the narration, which we address post.
We have reviewed the video.
We can ignore the narration because the video alone was more than sufficient evidence that Jonathan aided and abetted the murder of Segura. The video clearly shows the brothers come outside together before Segura is killed, thus evidencing companionship before the crime. (See, e.g., People v. Campbell (1994) 25 Cal.App.4th 402, 409 [accomplice did not just "happen by" crime scene].) The video further shows Jonathan walking back and forth on the street in front of Macias's property and Segura's property while Flavio is killing Segura, even pausing to peer over the fence, inferentially to watch his brother. Jonathan's movements up and down the street could reasonably be interpreted to mean that Jonathan, knowing that Flavio intended to kill Segura, aided him by remaining on the street as a lookout. One who acts as a lookout is a principal in a crime. (People v. Silva (1956) 143 Cal.App.2d 162, 169.) Also, Camargo saw Flavio and Jonathan at the van, when they were putting Segura's body into it. Thus, Jonathan's conduct after Flavio beat Segura supported a conclusion that he aided and abetted the murder.
Based on this evidence, perhaps a jury could conclude that all the video showed was a brother watching a brother commit a crime. But a jury could also reasonably conclude that Jonathan knew that his brother intended to kill Segura and helped him by acting as a lookout and then by moving the body. II. Narration of the video surveillance footage
As we describe in greater detail below, Detective Q. Rodriguez narrated the video of the crime. Jonathan contends that this narration deprived him of his right to a fair trial. (U.S. Const., 6th & 14th Amends.) We disagree.
A. The narration
Detective Rodriguez obtained video footage from Segura's neighbor who lived across the street. The footage was from two cameras; hence, there were two views of the incident. While the eight to 10 minute video played for the jury, the detective narrated it.
The detective began with noting that a fence separated Segura's and the Macias's yards. He then told the jury that they would see Flavio jump over the fence. Jurors would then see Flavio go to Segura's front door, speak to someone, and walk back toward his house. Flavio and Jonathan walked towards the street. Jonathan looked eastbound. Flavio then could be seen next to Segura's van. After Segura repositioned his car in the driveway, Flavio and Segura walked behind some foliage and trees, and, in the detective's words, "you're suddenly just gonna see [Segura] just drop." "I don't know what you guys will see, but I don't see a sign of a struggle up there. I just saw [Segura] immediately drop to the floor." The detective added that the jury would see something white, like a shirt, fall. The shirt, however, "turns out to be a body that fell." Defense counsel objected that he did not see that. The trial court overruled the objection and said it was up to the jury to determine what they saw in the video.
When Detective Rodriguez said it appeared Segura was dragged to the west and the "same individual that was standing earlier, you see him walk towards the right" of the screen, defense counsel objected again that this was not in the video and called for speculation. The trial court overruled the objection.
Referring to Jonathan, the detective said he had been walking around, looking around, and then he peered over the wall when it appears that "stones are being tossed over." When the detective referred to stones being tossed over the fence, defense counsel objected that he did not see stones being thrown. Counsel made a continuing objection to the detective's descriptions. The trial court noted the objection but said it was "up to the jury."
The detective described how Jonathan looked west, then "appeared to kind of fairly quickly walk back northbound, across the street, and at which point" a citizen walked by.
The detective then said that Flavio appeared to raise an object over his head and slam it "straight down to where [Segura]'s location was." The detective described how Flavio, after going back to the area where paving stones had been found, jumped over the fence into Segura's yard, picked up a paving stone, and slammed it down again. After walking behind a tree, Flavio came back into view and repeated the same motion of "slamming something onto where we believe [Segura] is." Flavio walked toward the planters and "you see some shadowing as though maybe he tossed something over. But they'd have to look at that and determine that." Flavio picked up the paving stone and walked back to the planter area, and although "you don't see him throw it over, but you put 2 and 2 together, and that's where the paving stone was found."
The detective described what "appear[ed] like [Segura]'s being drug" toward the van, and "it looked like he was bent down, he was trying to put him into his van. That's what it appeared." Jonathan walked towards "the scene where this occurred." The detective added, "It's I think important to note that the individual was walking east on the sidewalk. He was kind of walking at a normal pace. [¶] The minute he turned, he did like a quick, you know, like maybe out of view of people, he did a quick shuffle up to the van where the other individual was. And they're both there at the van now where the victim's body is." Jonathan and Flavio loaded Segura into his van. When done, Jonathan walked westbound on the sidewalk while Flavio lingered near the van. When Camargo came outside, Jonathan walked casually, but when he got into the fence gate doorway, he "ducks and takes off" towards his house.
The detective then reviewed an enhanced version of the video with the jury. He commented that at certain times in the video Jonathan was walking back and forth, "as though acting as a lookout" and "looking around, looking out" and then "he's also kind of standing in front of the location where the attack is going on." At a point when it "appears that the victim goes down," Jonathan is walking west to east, towards where the attack is occurring, and "appears to be looking around, looking out." He is watching through the fence, watching the attack as it's happening. The detective also suggested that when a neighbor walked by, Jonathan positioned himself to conceal what was behind him.
During the detective's 29 years in law enforcement, he has investigated cases involving people acting as lookouts. To determine whether someone is acting as a lookout, he looks at "their positioning, locations, what they're doing, more or less, with their eyes, their head. Because a lookout is very vital to certain crimes. So I'm watching their actions and their reactions with—and interactions with the other suspect that they're looking out for." A lookout's job is to alert their accomplice of people or cars passing by.
B. Prejudicial error did not occur
Jonathan contends that the detective's narration of the video went beyond the detective's personal knowledge and was not proper lay opinion testimony. Lay opinion testimony is admissible if it is rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony. (Evid. Code, §§ 800, 702, subd. (a).) A lay opinion must concern a subject of such common knowledge that people of ordinary education could reach a conclusion as intelligently as the witness. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1383.) A lay witness officer therefore can identify a person depicted in surveillance video of a crime as the defendant, where the officer was familiar with the defendant's appearance. (People v. Leon (2015) 61 Cal.4th 569, 600-601.) However, a lay witness generally may not opine about another person's state of mind. (People v. Chatman (2006) 38 Cal.4th 344, 397.) We review a trial court's admission of lay opinion testimony for abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128.)
As we said in connection with Flavio's appeal, we are skeptical that the entirety of the detective's narration was admissible as a lay opinion, as the detective was in no better position than the jurors to interpret the video. That it appeared to him, for example, that Jonathan was a lookout was not a proper lay opinion, as the jurors were more than capable of interpreting Jonathan's movements. That being said, the detective's testimony, based on his years of experience, about lookouts' behavior generally and the role they play in crimes could be proper expert opinion. (See generally Evid. Code, § 801.)
However, we need not decide that issue because even if parts of the narration were irrelevant, speculative or improper lay or expert testimony, we cannot conclude, under the applicable standard of review, that the detective's narration so undermined the defense that reversal is required. The erroneous admission of evidence does not require reversal except where the error caused a miscarriage of justice under the standard in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Richardson (2008) 43 Cal.4th 959, 1001.) A miscarriage of justice occurs when, after examining the entire cause, including the evidence, it is reasonably probable a result more favorable to the appealing party would have been reached absent the error. (Watson, at p. 836.)
Even if we reviewed any error for prejudice under the Chapman v. California (1967) 386 U.S. 18 standard—whether the error was harmless beyond a reasonable doubt—reversal would not be warranted.
We cannot reach such a conclusion here. Flavio admitted he killed Segura. And there was no dispute that Jonathan was the man loitering on the street as Flavio killed Segura. As we said above, the video was powerful evidence that Jonathan aided and abetted the crime. The detective's narration as to Jonathan was primarily descriptive, pointing out in what direction Jonathan was walking, that he was peering over the fence, and running inside. As to the detective's statement it appeared Jonathan acted as a lookout, this was hardly a controversial or surprising statement.
We also have no reason to find that the detective's narration overrode the jury's independent analysis of the video. In addition to viewing the video during Detective Rodriguez's testimony, the jury asked that the video be sent into the jury room during deliberations. Jurors were thus able to test what they saw against the detective's observations. (See People v. Larkins (2011) 199 Cal.App.4th 1059, 1068.)
Finally, we cannot agree that the detective's testimony was profile evidence. "A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime." (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) A profile expert compares the defendant's behavior to the pattern or profile and concludes the defendant fits the profile. (People v. Prince (2007) 40 Cal.4th 1179, 1226.) Profile evidence is generally inadmissible to prove guilt because it is inherently prejudicial. (Robbie, at pp. 1084-1085.) Jonathan suggests that the detective's supposed testimony about the nature of general aiding and abetting behavior and how it is vital to executing a crime was profile evidence. The detective did not, however, testify about the nature of general aiding and abetting behavior. What he said was certain behavior is indicia of someone acting as a lookout, and he described what he looks for in determining whether someone is a lookout. He did not say all people who, for example, move their heads a certain way or who loiter on a street are lookouts.
For these same reasons, we reject Jonathan's related due process contention. The admission of evidence, even if erroneous under state law, results in a due process violation only if it renders the trial fundamentally unfair. (People v Partida (2005) 37 Cal.4th 428, 439.) As we stated above, the detective's narration of the largely obvious did not deprive Jonathan of a fair trial. III. Failure to inquire into juror's competence
During a break in the defense closing argument, Juror No. 6 told a detective that her primary language was Spanish and she had not understood everything in the trial. In addressing that, the trial court noted that probably half of the jurors did not understand everything. "Nobody does. The language we use is a little antiquated and it's certainly not what you're going to hear on Saturday Night Live or Jimmy Kimmel." Because the trial court did not further inquire into the juror's competence, Jonathan contends the trial court violated his right to a trial by an impartial jury. We disagree.
A criminal defendant is entitled to trial by an impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) A juror must remain impartial throughout trial. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 483.) If a juror's impartiality is called into question, a court must hold a hearing. (Ibid.) However, not every incident involving a juror requires further investigation. (People v. Cleveland (2001) 25 Cal.4th 466, 478.) A hearing is required when the court possesses information, which if true, would constitute good cause to doubt the juror's ability to perform his or duties. (Ibid.) Whether to investigate a juror's conduct is left to the trial court's sound discretion. (Ibid.)
Here, the trial court did not abuse its discretion by declining to conduct further proceedings. Although a juror must possess a sufficient knowledge of English to understand the proceedings and the evidence on which a juror would base his or her decision (Code Civ. Proc., § 203, subd. (a)(6); People v. Eubanks (2011) 53 Cal.4th 110, 130), Juror No. 6's bare statement was insufficient to trigger a duty to hold a hearing. All she said was she had not understood everything. This, as the trial court indicated, was an unremarkable statement given the legal and factual issues. Nor does the voir dire Jonathan cites demonstrate that the juror had an inadequate ability to understand the proceedings. To the contrary, the voir dire shows that the juror was articulate, understood every question put to her, and answered questions appropriately and with sophistication. The so-called "linguistic limitations" Jonathan refers to are not indicators of a similarly limited ability to understand and to process the proceedings. That a person's first language is not English and that she speaks with imperfect syntax is not necessarily indicia of an inadequate understanding. The trial court had no duty to inquire further. IV. Ability to pay hearing
The trial court imposed a $5,000 restitution fine under section 1202.4, subdivision (b), a $30 court facility assessment under Government Code section 70373, and a $40 court operations assessment under section 1465.8. Under recent case law holding that such a fine and assessments may not constitutionally be imposed absent evidence of the defendant's ability to pay them, Jonathan contends that the matter must be remanded so that the trial court can conduct an ability to pay hearing. (See People v. Dueñas (2019) 30 Cal.App.5th 1157.)
It is unclear if Jonathan challenges the assessments.
We disagree because the issue was forfeited. People v. Dueñas, supra, 30 Cal.App.5th 1157 concerned imposition of the $300 minimum fine under section 1202.4, subdivision (b). The scenario involving a minimum fine, however, is not before us. Here, the trial court imposed a fine in excess of the minimum. Under that circumstance, the statute provides that a court may consider a defendant's inability to pay. (§ 1202.4, subd. (d); People v. Avila (2009) 46 Cal.4th 680, 729.) Jonathan did not object to the $5,000 fine. Having failed to object on the ground of inability to pay, the issue is forfeited as to the fine and to the assessments. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154; People v. Scott (1994) 9 Cal.4th 331, 353.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
LAVIN, Acting P. J.
EGERTON, J.